THE people have rejected Labor, but failed to embrace the Coalition. So the two parties are left straining not only for extra seats, but arguing for something grander - legitimacy.
Without any precedent in federal politics since the short-lived Menzies government of 1940 to guide them, both Julia Gillard and Tony Abbott are making a grab for the mantle of moral authority.
And each is using a different definition of what it takes to own "legitimacy". Neither wants to be seen as illegitimate in the struggle for public recognition, for the consent of the governed, for the support of the independents.
Abbott struck first. In his speech on election night and again yesterday, he claimed that the Gillard government had lost its legitimacy the moment it lost its majority.
But this cuts both ways. Because the Coalition doesn't have a majority either. So with neither party likely to command a majority in its own right, Abbott is, in effect, arguing that no one will have legitimacy to govern.
So Abbott went a step further. "The one unambiguous fact to emerge from yesterday's election is that there are about half a million more votes for the Coalition than for the Labor Party," he told reporters yesterday.
Quite true, if you count only the first preferences of the electorate.
With "a savage swing against this government", said Abbott, "I think that the public expect a change of government as a result." But Gillard, the caretaker prime minister, challenged Abbott's definition.
"It now appears clear that Labor has won the two-party vote. That means the majority of Australians who voted yesterday prefer a Labor government. I think this is a critical fact to weigh in the coming days."
And Gillard is also right. By last night, with 78 per cent of votes counted, Labor had won 50.68 per cent of the two party-preferred vote against the Coalition's 49.32, thanks to Labor's big share of the second preferences of people whose first choice was the Greens.
Gillard offered another measure in her Melbourne office yesterday. She was better able to conduct an inclusive style of politics, and added: "I'd also say during this period to the Australian people and to each member of the House of Representatives that consistently through the election campaign and prior, I was viewed as the preferred prime minister in any of the opinion polls that you choose to nominate." Again, quite true.
So what is the constitutional relevance of this flurry of measures invoked by the leaders?
"None," says Anne Twomey, a constitutional lawyer and associate professor at Sydney University. "From a constitutional point of view all that matters is who has a majority on the floor of the House."
But the leaders know that any sort of majority jury-rigged with the independents will be highly fragile, especially if it is seen as illegitimate. The charge of illegitimacy could be incendiary.
There is a rough justice in this outcome. The leaders each presented as opposition leaders. Rather than campaign on the government's record, Gillard ran as the opposition to the Rudd government, campaigning on the need to fix its mistakes. And Abbott ran a campaign to throw out the Gillard government.
It's no wonder there is a crisis of legitimacy.
Email a friend